Ploughmann NO v Pauw and Another (1727/2003) [2006] ZAWCHC 70; 2006 (6) SA 334 (C) (4 August 2006)

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[2006] ZAWCHC 70
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Ploughmann NO v Pauw and Another (1727/2003) [2006] ZAWCHC 70; 2006 (6) SA 334 (C) (4 August 2006)

44
Reportable
IN THE HIGH COURT OF SOUTH AFRICA
[CAPE OF GOOD HOPE PROVINCIAL DIVISION]
CASE NO:
1727/2003
In the matter between:
PLOUGHMANN NO Applicant
(in her capacity as executrix in the
Estate late Lorraine Myrtle Griessel)
and
CHARL CILLIERS PAUW First Respondent
ELSABETH KRUGER Second Respondent
JUDGMENT DELIVERED ON: 4
TH
AUGUST 2006
HJ ERASMUS, J
Introduction
[1] On 7
th
February 2003 Mrs Lorraine Myrtle Griessel brought an application by
way of Notice of Motion against the first respondent. Mrs
Griessel
has in the meantime died and she was substituted as applicant by the
executrix in her estate. In what follows, “applicant”
is used to
denote both Mrs Griessel in her capacity as such and the executrix.
To avoid confusion when reference is made to events
prior to the
institution of these proceedings, I shall refer to Mrs Griessel by
name.
[2] In her Notice of Motion, the applicant sought the
following relief:
An order for the eviction of the respondent from the applicant’s
property known as “Die Stroois” being Portion 6 (a portion
of
portion 2) of the farm Stofbergsfontein No 365, in the West Coast
District Municipality, Division Malmesbury, Province of
the Western
Cape, in terms of Section 4(8) of the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act No
19 of 1998;
An order determining the date by which the said respondent must
vacate the said property;
An order determining the date on which the eviction order in
paragraph (a) above may be carried out;
An order that the respondent pay the applicant’s costs of suit.
In what follows, I shall refer to the property mentioned
in paragraph (a) of the Notice of Motion as “Die Stroois” or “the

property”.
[3] The first respondent gave notice of his intention to
oppose the application. Answering papers were in due course filed.
The
respondent resists the application for his eviction on the ground
that he and his sister, Mrs Elsabeth Kruger, have by acquisitive

prescription acquired joint ownership of the property; alternatively,
that he has acquired the right of perpetual occupation by
virtue of
an agreement dated 31
st
January 1992.
[4] On 9
th
May 2005 Ndita AJ (as she then was) made two orders. The first was
made by agreement between the applicant and first respondent
inter
alia
as follows:
The main application is postponed for hearing from 26 May 2005 to 6
September 2005 on the following basis:
the main application is referred to trial;
the papers in the main application stand as pleadings for the
purposes of the trial;
the Uniform Rules of Court applicable to trial actions shall apply
to the matter from the granting of this order;
The order in paragraph 1.1, 1.2 and 1.3 above –
is made without prejudice to the respondent’s right to argue
in
limine
that the procedure by which the matter was instituted
was incorrect, and that the case should be dismissed on that basis;
and
is provisional upon the determination by the Court seized with the
matter on 6 September 2005 of the issue in paragraph 2.1;
3. The parties will, in the event that the Court should find against
the respondent on the aforesaid
in limine
point, be ready
immediately to proceed with the trial action and will prepare in
accordance with paragraph 1.3 above.
At the same time, Ndita AJ made the following order upon
application by the applicant:
That Elsabeth Kruger is joined as a second respondent in the main
action;
2. The applicant’s attorneys shall serve a copy of the papers filed
of record in the main application and of the order in the

interlocutory application granted today on the said Elsabeth Kruger.
[5] An amended Notice of Motion was served on the second
respondent on 29
th
December 2005. In the amended Notice of Motion, the eviction of the
second respondent is sought along with that of the first respondent.
[6] The executrix in Mrs Griessel’s estate deposed to
the founding affidavit in the application as against the second
respondent.
The second respondent in her answering affidavit
re-iterated the defence of prescription raised by the first
respondent. She also
raised objections to the manner in which she had
been drawn into the proceedings.
[7] As a result of the death of the applicant, and the
delay in the appointment of an executor, the matter could not proceed
to
trial on the agreed date of 6
th
September 2005. On 6
th
December 2005, by agreement between the parties (the parties being
the applicant and both first and second respondent), Hlophe
JP made
the following order:
1. The application is postponed to 10
th
April 2006, on the
same basis as set out in the order of Ms Acting Justice Ndita of 9
May 2005 (“the previous order”).
2. The order remains subject to the reservation of the first
respondent’s right as contained in paragraph 2.1 of the previous

order and subject to the proviso contained in paragraph 2.2 thereof.
3. The order is subject also to the reservation of the second
respondent’s right to take any
in limine
points relevant to
her joinder and participation in these proceedings.
4. Paragraph 3 of the previous order continues to apply, and applies
also to the second respondent.
5. The costs occasioned by the postponement will stand over for later
determination.
[8] At the hearing, the applicant was represented by Mr
André Gautschi SC and Mr J-H Roux; the respondents were
represented
by Mr Eduard Fagan.
The issues
[9] When the matter was referred to trial, no order was
made for the filing of pleadings; it was ordered that the affidavits
should
stand as pleadings. At the commencement of the trial, counsel,
at my request, listed the matters in issue between the parties.
[10] The matters in issue between the applicant and the
first respondent are listed as follows:
The applicant is the registered owner of Portion 6 (a portion of
portion 2) of the farm Stofbergsfontein No 365, in the West
Coast
District Municipality, Division Malmesbury, Province of Western Cape
(“the property”). This is common cause.
The first respondent is in possession of the property. This is
common cause.
Whether the first respondent has become the owner of the property by
acquisitive prescription.
Alternatively to 3, whether the first respondent has the right of
perpetual occupation by virtue of the supplementary agreement
dated
31 January 1992 (Bundle 190—195).
Whether the first respondent, together with his predecessors in
title (if any), possessed the property for more than thirty years.
Whether the first respondent, together with his predecessors in
title (if any), possessed the property is if they were the owner

thereof.
Whether the respondent waived all his claims to the property
(whether as owner or occupier) in terms of the Deed of Sale
concluded
on 23 July 2001 (Bundle 266—283).
Whether the first respondent could in law become the owner of the
property by acquisitive prescription in view of the provisions
of
the Subdivision of Agricultural land Act, No 70 of 1970 [I was
informed from the Bar that the parties are agreed that the
land in
question was agricultural land].
Whether the first respondent as “joint owner” can in fact or in
law obtain ownership by acquisitive prescription of the property

where the other “joint owner” fails to establish her ownership
by acquisitive prescription.
[11] The matters in issue between the applicant and the
second respondent are listed as follows:
The applicant is the registered owner of Portion 6 (a portion of
portion2) of the farm Stofbergsfontein No 365, in the West Coast

District Municipality, Division Malmesbury, Province of Western Cape
(“the property”). This is common cause.
The second respondent is in possession of the property. This is
common cause.
Whether the second respondent has become the owner of the property
by acquisitive prescription.
Whether the second respondent, together with her predecessors in
title (if any), possessed the property for more than thirty
years.
Whether the second respondent, together with her predecessors in
title (if any), possessed the property openly.
Whether the second respondent, together with her predecessors in
title (if any), possessed the property is if they were the owner

thereof.
Whether the second respondent could in law become the owner of the
property by acquisitive prescription in view of the provisions
of
the Subdivision of Agricultural land Act, No 70 of 1970 [I was
informed from the Bar that the parties are agreed that the
land in
question was agricultural land].
Whether the second respondent as “joint owner” can in fact or in
law obtain ownership by acquisitive prescription of the
property
where the other “joint owner” fails to establish his ownership
by acquisitive prescription.
[12] A bundle of documents (“the Bundle”) was
prepared by the applicant in accordance with an agreement between the
parties
at a Rule 37 conference held on 27
th
March 2006. It was agreed that the copies of documents included in
the bundle will, without further proof, serve as evidence of
what
they purport to be, subject thereto that any document already placed
in dispute in the affidavits shall remain in dispute,
and that any
party may, upon reasonable notice, require proof of any other
document. It was further agreed that the truth of the
contents of the
documents is not admitted.
Issues raised
in
limine
[13] At the outset, Mr Fagan raised the issues
in limine
which were anticipated in the
orders of Court made on 6
th
May 2005 and on 6
th
December 2006. He submitted that on the ground of the issues so
raised, the application should without further ado be dismissed
with
costs. The issues raised
in limine
are the following: (i) the applicant should have proceeded by way of
action and not by way of motion proceedings; (ii) the second

respondent was joined without her knowledge and concurrence, and she
has not agreed to the conversion of the application against
her into
a trial; and (iii) there has not been compliance with section 4(2) of
the Prevention of Illegal Eviction from and Unlawful
Occupation of
Land Act 19 of 1998 (hereafter “PIE”). I declined the application
for the dismissal of the application. I indicated
at the time that I
would give reasons for my ruling in the judgment at the end of trial.
The reasons follow.
The form of the proceedings
[14] The first point raised
in
limine
is that the applicant should have
proceeded by way of action and not by way of motion proceedings. In
his answering affidavit,
the first respondent states:
Applicant knew all along … that my sister and I relied principally
on our prescriptive title to Die Stroois. She was therefore
well
aware that I would resist any application for eviction, and that I
had sound factual and legal grounds for doing so. She certainly
can
never have been in any doubt that there would be significant factual
disputes in this matter, which were material and could
never have
been resolved in her favour on the papers …
Mr Gautschi submitted whilst the first respondent had in
the past indicated that he had certain claims to Die Stroois, and had
occupied
it as owner, the applicant could not reasonably have
anticipated that irresoluble disputes of fact would inevitably
develop.
Mrs Griessel became the registered owner of the property
on 13
th
May 2002
by way of a Deed of Partition Transfer. Neither respondent took any
steps to prevent the transfer taking place. On 30
th
August 2002 Mrs Griesel, through her attorney, required the first
respondent to vacate Die Stroois by no later than 30
th
November 2002. On 1
st
November 2002 the first respondent’s attorney responded as follows:
Ons kliënt is besig om die aangeleentheid te oorweeg en vir ons
instruksies te gee en ons vra u om asseblief vir ons ‘n
tydjie toe
te laat om terug te kom na u.
By the time the application was launched on 7
th
March 2003, and served on 12
th
March 2003, there had been no response to the letter demanding that
the first respondent vacate the property and no indication
of an
intention to assert his claims to ownership by acquisitive
prescription.
Moreover, on 23
rd
July 2001 the first respondent signed a Deed of Sale in the preamble
of which reference is made to the fact that he has waived
certain
rights. Pursuant to the Deed of Sale he obtained a substitute
property for a nominal amount. The waiver featured prominently
during
the trial and will be dealt with in some detail later in this
judgment. At the time when Mrs Griessel instituted the proceedings,

she may have been justified (whether or not the view was in fact
correct), also in view of the first respondent’s lack of response

to her letter of demand, in thinking that the issue of prescription
was no longer alive.
The Court is given a wide discretion by Rule of Court
6(5)(g) which provides that –
… where an application cannot be properly decided on affidavit the
court may dismiss the application or make such order as to
it seems
meet with a view to ensuring a just and expeditious decision …
The parties are ready to proceed with the trial and a
dismissal would lead to an unnecessary waste of time, effort and
costs.
In view of the foregoing and in the exercise of my
discretion, I refused the application for the dismissal of the
application.
The joinder of the second respondent
[15] The second point raised
in
limine
is that the second respondent was
joined without her knowledge and concurrence, and she has not agreed
to the conversion of the
application against her into a trial.
In his answering papers the first respondent averred
that he and his sister, Mrs Elsabeth Kruger, have by acquisitive
prescription
acquired ownership of the property. In a letter dated
16
th
July 2004,
the applicant’s attorney requested the first respondent’s
attorneys –
Kindly advise us whether Ms Kruger is, in the circumstances, willing
to abide the court’s decision in this matter or whether
we need to
consider joining her as a respondent in these proceedings.
On 23
rd
September 2004 the first respondent’s attorneys replied –
As far as Mrs Kruger is concerned, she has not been joined as a party
and she definitely not abide by the court’s decision.
(sic)
The letter creates the clear impression that the first
respondent’s attorneys were acting also for the second respondent.
The
application for joinder was accordingly served on the first
respondent’s attorneys and the order was granted with their
knowledge.
They continued to represent the second respondent, filing
on her behalf a notice of intention to defend and an answering
affidavit,
and briefing counsel to represent her at the trial.
The second respondent was joined by an order of Court.
This was clearly done under the inherent power of the Court to order
the
joinder of a further party to an action which has already begun
in order to ensure that persons interested in the subject-matter
of
the dispute and whose rights may be affected by the judgment of the
Court shall be before the Court, and it also enables the
Court to
avoid multiplication of actions and to avoid waste of costs (see
SA
Steel Equipment Co (Pty) Ltd and Others v Lurelk (Pty) Ltd
1951 (4) SA 167
(T) at172H—173A;
Harding v
Basson and Another
1995 (4) SA 499
(C) at
501I).
In my view, the second respondent has been properly
joined.
[16] When Ndita AJ granted the application for the
joinder of the second respondent, she ordered the applicant’s
attorneys to
serve on the second respondent a copy of the papers
filed of record in the main application and of the order in the
interlocutory
application referring the matter to trial and
postponing it to 6
th
September 2005. The second respondent contends that she was not a
party to the agreement that the application be resolved “by
way of
oral evidence”.
[17] The second respondent further contends that,
because she was joined at a time when irresoluble disputes of fact
had already
manifested themselves in the application, the applicant
should not have proceeded against her by way of application by
joining
her to the application, but should have proceeded against her
by way of summons. Mr Gautschi submitted, rightly in my view, that
it
was clearly desirable, to avoid a multiplicity of actions, that the
second respondent should have been joined at the time when
the matter
was referred to trial. The same result, but at greater cost, might
have been achieved by the institution of a separate
action against
the second respondent and thereafter consolidating the action with
the application/action against the first respondent.
In view of the foregoing and in the exercise of my
discretion, I refused the application for the dismissal of the
application against
the second respondent.
Non-compliance with section 4(2) of PIE
[18] The third point raised
in
limine
is that there has not been compliance
with section 4(2) of PIE. Sections 4(1) and (2) of PIE provide as
follows:
Notwithstanding anything to the contrary contained in any law or
the common law, the provisions of this section apply to proceedings

by the owner or person in charge of land for the eviction of an
unlawful occupier.
(2) At least 14 days before the hearing of the proceedings
contemplated in subsection (1), the court must serve written and
effective
notice of the proceedings on the unlawful occupier and the
municipality having jurisdiction.
Subsection (3) provides that, subject to the provisions
of subsection (2), the procedure for the serving of notices and
filing of
papers is as prescribed in the rules of Court. Subsection
(4) provides that service must be effected in the manner directed by
the Court if service cannot conveniently or expeditiously be effected
in the manner provided in the Rules of Court. This is subject
to the
following proviso:
Provided that the court must consider the rights of the unlawful
occupier to receive adequate notice and to defend the case.
Subsection (5) provides as follows:
T
he notice of proceedings contemplated in
subsection (2) must –
state that proceedings are being instituted in terms of subsection
(1) for an order for the eviction of the unlawful occupier
indicate on what date and at what time the court will hear the
proceedings;
set out the grounds for the proposed eviction; and
state that the unlawful occupier is entitled to appear before the
court and defend the case and, where necessary, has the right
to
apply for legal aid.
[19] The purpose of section 4(2) is –
to afford the respondents in an application under PIE an additional
opportunity, apart from the opportunity they have already had
under
the Rules of Court, to put all the circumstances they allege to be
relevant before the court.
(
Unlawful Occupiers, School Site
v City of Johannesburg
2005 (4) SA 199
(SCA)
at 209I—J;
Cape Killarney Property
Investments (Pty) Ltd v Mahamba and Others
2001 (4) SA 1222
(SCA) at 1229E—F;
Moela v
Shoniwe
2005 (4) SA 357
(SCA) at 362F).
The object of paragraphs (a) and (c) of subsection (5)
is –
… to inform the respondents of the basis upon which the eviction
order is sought so as to enable them to meet that case.
(
Unlawful Occupiers, School Site
v City of Johannesburg
2005 (4) SA 199
(SCA)
at 210A).
It has been held that the provisions of section 4(1)—(5)
are peremptory (
Cape Killarney Property
Investments (Pty) Ltd v Mahamba and Others
2001 (4) SA 1222
(SCA) at 1227E —1228H;
Unlawful Occupiers, School Site v City of Johannesburg
2005 (4) SA 199
(SCA) at 209G;
Moela v Shoniwe
2005 (4) SA 357
(SCA) at 362C).
[20] In
Unlawful Occupiers,
School Site v City of Johannesburg
2005 (4)
SA 199
(SCA) at 209G —H it was held that though the requirements of
section 4(2) must be regarded as peremptory, it is nevertheless clear

from the authorities that –
… even where the formalities required by statute are peremptory it
is not every deviation from the literal prescription that
is fatal.
Even in that event, the question remains whether, in spite of the
defects, the object of the statutory provision had
been achieved.
This statement is cited with approval in
Moela
v Shoniwe
2005 (4) SA 357
(SCA) at 362E.
[21]
With reference to a defective section 4(2) notice,
defective in the sense that it did not fully comply with section
4(5)(c), it
is said in
Unlawful Occupiers,
School Site v City of Johannesburg
2005 (4)
SA 199
(SCA) at 210A that –
[t]he question is therefore whether, despite its defects, the s 4(2)
notice had, in all the circumstances, achieved that purpose.
With
reference to the appellants who all opposed the application and who
were at all times represented by counsel and attorneys,
the s 4(2)
notice had obviously attained the Legislature’s goal.
At 210D—E it is stressed that the question whether a
deficient section 4(2) notice achieved its purpose “cannot be
considered
in the abstract”, and that the “answer must depend on
what the respondents already knew”. To hold the contrary, Brand JA
says, would lead to results which are untenable:
Take the example of a s 4(2) notice which failed to comply with s
4(5)(d) in that it did not inform the respondents that they were

entitled to defend a case or of their right to legal aid. What would
be the position if all this were clearly spelt out in the
application
papers? Or if on the day of the hearing the respondents appeared with
their legal aid attorney? Could it be suggested
that in these
circumstances the s 4(2) should still be regarded as fatally
defective? I think not.
[22] In
Moela v Shoniwe
2005 (4) SA 357
(SCA) no section 4(2) notice had been served on the
local authority concerned. After reiterating that the object of the
notice
is to ensure that the unlawful occupier and the local
authority are fully aware of the proceedings and that the unlawful
occupier
is aware of the rights referred to in section 4(5)(d), it is
observed (at 362G) that it may well be that –
… that object, in appropriate circumstances, may be achieved
notwithstanding the fact that service of the notice required by
s
4(2) had not been authorised by the court. This may, for example, be
the case if at the hearing it is clear that written and
effective
notice of the proceedings containing the information required in
terms of s 4(5) had in fact been served on the unlawful
occupier and
municipality 14 days before the hearing. Whether it would, need not
be decided by us as there is no basis upon which
it can be found that
the municipality had been notified of the proceedings at all or that
the municipality had any knowledge of
the proceedings.
[23] This brings me to the facts of the matter before
me. On 16
th
March
2006 Zondi AJ made the following order upon application of the
applicant in these proceedings:
Applicant is authorised and granted leave to serve the notice
attached hereto marked “NOM 1” on the Manager, West Coast
Municipality
by telefaxing a copy thereof to the said Municipality at
(022) 433 8484, in compliance with section 4(2) of the Prevention of
Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998.
The attached notice reads as follows:
Take Notice that the abovementioned applicant intends making
application to the above Honourable Court on Monday 10 Aprils 2006

and 10h00 or as soon thereafter as Counsel may be heard for orders in
terms of its Notice of Motion.
Take notice that:
This application is for the eviction of the respondents from from
the property known as “Die Stroois” being Portion 6 (a
portion
of portion 2) of the farm Stofbergsfontein No 365, in the West Coast
District Municipality, Division Malmesbury, Province
of the Western
Cape (“the property”.
The application has been brought in terms of Section 4(1) of the
Prevention of Illegal Eviction from and Unlawful Occupation
of land
Act No 19 of 1998 and is brought on the grounds that the respondents
are in unlawful occupation of the property.
The application has been referred to trial by this Honourable Court.
The respondents are entitled to appear before the above Honourable
Court on 10 April 2006 at 10h00 to defend the case and, where

necessary, have the right to apply for legal aid.
On the same day, the 16
th
March 2006, the notice was served on the Manager of the West Coast
district Municipality by the sheriff of Moorreesburg/Hopefield.
[24] There was no service of the notice on the first and
second respondents. They were, however, aware from the contents of
the
Notice of Motion that their eviction was being sought under the
provisions of PIE. On 6
th
December 2005 they were parties to the agreement to postpone the
matter for hearing on 10
th
April 2006. They were both legally represented and by 10
th
April 2006 their response to the application for their eviction had
been fully documented in the papers filed on their behalf.
I am of
the view that there has been substantial compliance with the
provisions of PIE and that the objects of section 4(2) of
PIE have
been achieved. In the circumstances and in view of the legal position
set out in the judgments cited in paragraphs [19]
to [22] above, I
dismissed the objection raised
in limine
is that there had not been compliance with section 4(2) of PIE.
The West Coast National Park
[25] During the 1980’s the SA National Parks Board
(the “Parks Board”) was in the process of expanding the West
Coast National
Park (the “Park”) which is situated around the
Langebaan lagoon on the West Coast. Certain of the land covered by
the Park
already belonged to the State. This included the admiralty
zone around the lagoon. The Parks Board did not have sufficient funds

to purchase the land needed for the expansion and consolidation of
the Park. Into the breach stepped the late Dr Anton Rupert who

obtained funds from donors abroad. Mr F Stroebel (“Stroebel”) was
at the time the chief executive officer of the SA Nature
Foundation.
He said in evidence that Dr Rupert requested him to enter into
negotiations with the State with a view to the establishment
of a
trust which would assist the Parks Board to establish new parks or to
expand existing ones. Such a trust was duly formed (the
“Parks
Trust”) and Stroebel became one of the trustees. Thereafter
Stroebel became intimately involved in the negotiations
for the
purchase of land around the Langebaan lagoon. The negotiations
dragged on for many years and Stroebel remained involved
even after
he had left the SA Nature Foundation and moved to another executive
position. The basic scheme was that the land was
purchased by and
transferred to the Parks Trust which then transferred the land to the
Parks Board on ninety-nine year leasehold.
In the case of certain of
the farms, the position in regard to ownership was complex and the
basic pattern had to be deviated from
in order to make provision for
the needs of the local population. The farm Stofbergsfontein was one
such case.
The farm Stofbergsfontein
[26] The farm Stofbergsfontein 365 was first surveyed
and registered in 1820. It is said that as early as 1826 the first
farmhouse,
Die Stroois, was built by one Caswell. The descendants of
Caswell retained a share in the ownership of the farm at the time of
the establishment and expansion of the West Coast National Park. In
October 1988 consultants submitted a report containing proposals
for
the development of Stofbergsfontein within the context of the West
Coast National Park. In their report, the consultants refer
to the
confused position in regard to the ownership of the farm. At the time
of the report there were twenty-nine owners of the
farm, some of the
owners being private companies. They were all joint owners at the
time, each joint owner having a proportionate
share of the ownership
of the farm as a whole. Griessel was the most significant single
owner, holding 25 per cent of it; the proportionate
share of other
owners differed, certain owners having only a 1/640
th
share. In the documentation, these co-owners are referred to as
“shareholders”.
[27] Over the years, two traditional settlements arose
on the farm, Bossieskraal Village and Stofbergsfontein village. The
latter
is adjacent to the town of Churchhaven which is located on a
separate farm. In the report of the consultants it was proposed that

the existing settlements on the farm should be consolidated and
upgraded.
[28] On 24
th
December 1991 an agreement (hereafter “the Agreement”) was
entered into between the Parks Board, the Parks Trust and the
“Shareholders
of the Remainder of the farm Stofbergsfontein”. It
is a lengthy and complex agreement, the essential terms of which, for
present
purposes, were (i) the farm was sold to the Parks Trust, and
(ii) the shareholders were allocated specific plots. The existing
“farmhouses” were also allocated to shareholders. In terms of the
agreement, Die Stroois was allocated to Griessel.
[29] 0n 31
st
January 1992 the parties entered into a supplementary agreement (the
“Supplementary Agreement”) which again deals with,
inter
alia,
the allocation of the farmhouses,
including Die Stroois, to Griessel. In terms of the Supplementary
Agreement, Griessel “accepts
and agrees” that the existing
occupiers of the farmhouses have “usage and occupation rights”.
The first respondent’s claim
to a right to occupy Die Stroois
arises from the terms of the Supplementary Agreement.
[30] By reason of the massive amount of paperwork
involved, the Agreement between the Parks Board, the Parks Trust and
the shareholders
took a long time to be implemented. Transfer of Die
Stroois to Griessel was effected on 13
th
May 2002. Hence the following statement in her founding affidavit:
As I only became the registered owner of the Property on 13 May 2002,
I was prevented from bringing any application to eject the
respondent
from the cottage sooner. Furthermore, any such application would have
had to have been brought in the name of all the
former joint owners,
which total 26 in number and include many deceased estates and
various companies, as is apparent from the
Deed of Partition
Transfer.
Order of discussion of the issues raised
[31] The issues raised on the papers will be discussed
under the following heads:
1. Prescription.
2. Waiver.
3. Perpetual occupation.
4. The second respondent’s position.
5. The provisions of the Subdivision of Agricultural
land Act, No 70 of 1970.
6. Acquisitive prescription by joint possessors.
Prescription
[32] The first and second respondent’s father, the
late Mr Callie Pauw, took occupation around 1970 of a derelict
structure on
the southernmost side of Stofbergsfontein, next to a
cottage locally known as “Meraai se huisie”. On 28 December 1973
Mr Callie
Pauw together with one Thomas William Barsby acquired from
one Henry William Stringer (“Stringer”) the latter’s rights to

Die Stroois. The document, which is in the handwriting of Mr Pauw,
falls into two parts. The first part reads as follows:
I Henry William Stringer hereby agree to cede my right and title to
the cottage on Stofbergsfontein to Thomas Valentine Barsby
and Carel
August Pauw.
The compensation will be R150 payable against occupation.
Signed at Stofbergsfontein on the 28th Day of December 1973.
The signature of Stringer follows.
Two weeks later, one Thomas William Barsby made over his
rights to Mr Pauw. The second part of the handwritten document
records:
I, Thomas William Barsby hereby cede my interest in the above cottage
to Carel August Pauw for the consideration of one hundred
Rand
R.100.00
Signed at Stofbergfontein on the 13
th
of January 1974.
The signature of TW Barsby follows.
According the first respondent, the person named Thomas
Willam Barsby in the second part of the document, is in fact the same
person
whose names are erroneously given as Thomas Valentine Barsby
in the first part of the document.
[33] On 2
nd
February 1976 Mr Callie Pauw entered into a written agreement with
George Albert Barsby for the purchase of one-twentieth of Barsby’s

share in Stofbergsfontein. The purchase price was R300.00. According
to the list of Registered Owners of the Farm Stofbergsfontein”

annexed to the Agreement, George Albert Barsby was the registered
holder of a 1/480
th
share in Stofbergsfontein.
[34] Mr Callie Pauw continued to occupy Die Stroois
until his untimely death in 1982 by drowning in the lagoon. During
his lifetime,
he made improvements to the cottage which included
replastering, replacement of the thatch roof, replacement of floors,
and extensive
renovation of the plumbing. After Mr Pauw’s death,
the respondents took possession and occupation of Die Stroois which
they regularly
used as a holiday cottage. They maintained the cottage
in good condition and again replaced the thatch roof. The respondents
aver
that, like Mr Callie Pauw, they have openly occupied Die Stroois
as if they were the owners and that they have acquired ownership
of
the property by acquisitive prescription.
[35] Stringer deposed to an affidavit which forms part
of the applicant’s replying papers in which he sought to undermine
the
factual basis of the respondents’ claim to prescriptive title.
When called to give evidence, he largely disavowed the contents
of
his affidavit. He was a thoroughly unreliable witness, but what does
emerge from his evidence is that he rented Die Stroois
and that he
did not occupy as owner or as if he were the owner. Acquisitive
prescription did not commence to run while he was in
occupation.
[36] It is clear, and confirmed by the first respondent,
that Mr Callie Pauw knew that Stringer was not a registered owner of
Stofbergsfontein.
In other words, Mr Callie Pauw knew that he had
not acquired ownership from Stringer and accordingly knew that he was
not occupying
Die Stroois as owner. Mr Fagan submitted, rightly, that
the
Prescription Act 68 of 1969
does not require a claimant under its
provisions to be the owner of the property (for there would then be
no need to claim prescriptive
title), but rather that the claimant
should possess the property “as if he were the owner” (see
Campbell v Pietermaritzburg City Council
1966 (2) SA 674
(N) at 680C—D;
Bisschop v
Stafford
1974 (3) SA 1
(A) at 9B: “holding
as if of right”; DL Carey Miller (with Anne Pope)
Land
Title in South Africa
(2000) at 173—174).
[37] Mr Callie Pauw’s will and the liquidation and
distribution account in his estate did not include Die Stroois among
his assets.
Why the one-twentieth of George Albert Barsby’s 1/480
th
share in Stofbergsfontein, which Mr Callie Pauw had purchased in
1976, does not feature his will and the liquidation and distribution

account in his deceased estate is part of the mystery that surrounds
that transaction.
[38] All this still begs the question whether Mr Callie
Pauw possessed openly and as if he were the owner. Mr Gautschi
submitted
that the rights Mr Callie Pauw acquired from Stringer were
the rights of occupation as a tenant. He further submitted, and I
quote
from his written Heads of Argument, “it is probable that Mr
Callie Pauw knew
[that Stringer was a
rent-paying tenant]
, and considered himself
to be a tenant, whether or not he paid rent”.
[39] The position of Mr Callie Pauw was indeed confused
and confusing. One gains the impression that Mr Callie Pauw, who had
knowledge
of the law of property, was anxious to find some legal base
to underpin his occupation of Die Stroois. He acquired certain rights

by way of cession from Stringer and Thomas William Barsby, but what
those rights were is by no means clear. From Stringer, Mr Callie
Pauw
could have acquired no more than his rights of occupation as a
tenant. What rights he acquired from Mr TW Barsby is not apparent
on
the evidence. After the ostensible purchase of one-twentieth of Mr GA
Barsby’s share in Stofbergsfontein, Mr Callie Pauw would
have
occupied Die Stroois as co-owner in undivided shares. A person cannot
acquire prescriptive title to property the ownership
of which is
legally vested in him already (
Ex parte Puppli
1975 (3) SA 461
(D) at at 463E).
[40] The evidence does not, in my view, support a
conclusion that Mr Callie Pauw possessed as if he were the owner.
Acquisitive
prescription did not, therefore, commence to run while Mr
Callie Pauw was in possession. Prescription began to run in 1982 when

the first and second respondents took possession of Die Stroois after
the death of Mr Callie Pauw. Both the first and the second
respondent
therefore fall short of the 30 year period required in terms of
section 1
of the
Prescription Act 68 of 1969
. In the case of the
first respondent, the running of prescription was interrupted by the
service of the Notice of Motion on him
on 7
th
February 2003. In the case of the second respondent, the running of
prescription was interrupted on 29
th
December 2005 when the Notice of Motion was amended so as to seek her
eviction along with that of the first respondent (see
Brandon
v Minister of Law and Order and Another
1997
(3) SA 68
(C) at 75E—F).
[41] If it were to be accepted that the period of
acquisitive prescription commences with Mr Callie Pauw at the end of
1973 / beginning
of 1974, the first respondent still falls short of
the requisite 30 year period. The position of the second respondent
would be
different: in her case the interruption of prescription on
29
th
December 2005
would come after completion of a period of thirty years. The
applicant contends, however, that even if the second
respondent
qualifies in terms of the period of possession, she did not acquire
prescriptive title by reason of the fact that she
did not possess
openly as if she were the owner.
Waiver
[42] The applicant’s attitude is that the first
respondent has, in any event, waived all rights to Die Stroois.
[43] The evidence of Stroebel (who, I must emphasise,
was a most impressive witness whose evidence I accept without
reservation)
throws important light on the first respondent’s
waiver of rights. The following snatches from his evidence are
apposite:
Dit het juis dan daartoe aangelei dat wanneer daar sekere probleme
ter sprake gekom het, is ek soms ingeroep om met die gemeenskap
te
praat en in hierdie spesifieke geval het dit toe uitgekom dat daar
aanspraakmakers is in hierdie gemeenskap wat aangedui het
dat hulle
bepaalde regte daaroor sou beskik en dit het ‘n probleem veroorsaak
omdat die gemeenskap daar aangedui het dat hierdie
persone het nie
regte daar nie en hulle is nie bereid om hierdie persone te
akkommodeer nie.
The first respondent was one of the people who claimed
certain rights and, as Stroebel said, members of the community
(shareholders)
were not prepared to sign any agreement with the Parks
Board or Parks Trust unless the situation around his claims was
resolved:
Uiteindelik het ons toe gesê maar kan ons nie dalk vir mnr Pauw
– kan ons nie die probleem verwyder deur een van ons erwe
[ie an
erf belonging to the Parks Trust]
vir mnr Pauw te gee. Dit aan
die gemeenskap oor te dra dat mnr Pauw ‘n erf sal kry, hy word dus
glad nie meer deel van die, kom
ons noem dit die groep wat dus met
ander finaal die ooreenkoms moet onderteken nie. Parketrust sal na
hom omsien, en dit is die
besluit wat ons geneem het en dit is ook so
aan mnr Pauw oorgedra.
Die erf wat hy gekry het was een van die erwe wat die trust besit
het? --- Dis een van daardie ag erwe en die besluit op daai stadium

was dat dit sal aan hom oorgedra word op ‘n basis dat hy afstand
doen van alle regte sodat ons dit aan die gemeenskap kan oordra,

sodat hulle kan voortgaan om hierdie te kan – die ooreenkoms te kan
sluit. Ons het op ‘n bedrag van R25 000.00 besluit, wat
‘n
duimsuig in terme van prys was en dit was eintlik net om ons kostes
en die oordragkostes, ek wil net vir u meld dat die trust
het
byvoorbeeld elke keer betaal vir die omgewingimpakstudies, die trust
het vir ‘n verskeidenheid van die goed betaal ten einde
hierdie
transaksie gefinaliseer te kry.
In answer to a question as to what happened to other
erven which belonged to the Parks Trust, Stroebel said that two of
them were
sold to resolve issues similar to those in the case of the
first respondent, and added that –
….. die ander erwe is nog steeds in ons besit en ons is bewus
daarvan – wel ons het aanbiedings op die oomblik van R2 miljoen
vir
‘n erf.
In regard to Griessel’s attitude, the following
passage in Stroebel’s evidence is of importance:
Was sy bereid – was me Griessel bereid om die dokumentasie te teken
vir die afhandeling van die oordragte voordat u hierdie kontrak

gesluit het met mnr Pauw? --- Nee sy het eers nadat ek haar ingelig
het dat ons nou ‘n ooreenkoms gerkry het dat hy ‘n erf
sal kry as
een van die Parketrust erwe, het sy ingestem daartoe om die
ooreenkoms te sluit.
Is sy meegedeel dat – van die afstanddoening van regte? --- Ja
absoluut, ek meen dit was gemene saak onder die persone dat die
rede
hoekom mnr Pauw ‘n erf gaan kry is omdat hy aanspraak maak op
regte. Ons het geweet die gemeenskap en onder andere sy, het
daai
regte ontken, maar om die problem weg te neem het ons gesê ons
sal vir hom ‘n erf gee en dan moet hy afstand doen
van al sy regte
en dis op grond daarvan wat – twee goed, wat – sy het eintlik
geteken, maar dis ook die enigste rede hoekom
ons aan mnr Pauw ‘n
erf gegee het. Ek meen daar was geen ander rede hoekom ons aan Pauw
‘n erf sou gee nie.
Stroebel was adamant that the waiver had taken place in
1991 prior to the signing of the Agreement. When it was put to him in
cross-examination
that “in 1992 was daar nog geen afstanddoening
van regte deur mnr Pauw gewees”, he intervened –
O nee, nee, daar was sonder twyfel absoluut deur mnr – ekskuus tog,
op grond waarvan sou ons andersins vir mnr Pauw ‘n erf
gegee het?
…..
Ek wil vir u sê die afstanddoening is wat my betref in 1991
voltooi gewees gegrond op ‘n belofte, ons gaan vir jou ‘n
erf
gee, so jy gaan daar kan aanbly, jy doen afstand van alle regte …
[44] The sale of the erf to the first respondent was
formalised in a Deed of Sale (“the Deed of Sale”) entered into in
2001
after the subdivisions had been made. In the Preamble of the
Deed of Sale, entered into between the Parks Trust as seller and the

first respondent as purchaser, the history of the negotiations with
the owners of Stofbergsfontein with a view to the purchase
of the
farm by the Parks Trust is briefly set out. For present purposes it
is necessary to set out the terms of paragraphs 1.2,
1.8 and 1.10 of
the Preamble:
Dit word geboekstaaf dat:
Gedurende die aanvanklike onderhandelinge met die eienaars het dit
geblyk dat sekere persone wat nie geregistreerde eienaars
van die
plaas was nie, sekere “verblyfregte” en “aansprake” met die
verloop van die jare op die plaaas Stofbergsfontein
gevestig en
bekom het wat daartoe gelei het dat Nasionale Parkeraad en
Nasionale Parketrust wat die aankoop van die plaas sou
finansier,
met gemelde persone moes onderhandel en ooreenkomste sluit vir die
aankoop van die plaas. Daardeur is die regte
en aansprake van
sekere “nie eienaars” noodwendig erken.
Uit die korrespondensie sedert 1991 en konsepooreenkomste hierby
aangeheg onderskeidelik gemerk “C1-C5”gewissel tussen
die koper
en die Nasionale Parkeraad dit ooreengekom was dat die koper ‘n
erf (destyds Nr 55 en later Nr 50) sou bekom teen
R25 000.00 in
ruil waarvoor hy van sekere “aansprake” sou afstand doen.
1.10 Die Verkoper en die Koper gedurende 1999/2000 ooreengekom het
dat die koper oordrag kan neem van Gedeelte/Erf Nr 60 ter uitvoering

van die gemelde “ooreenkomste” waarna verwys word in 1.8. hierbo
deurdat die Verkoper een van die eiendomme aan hom toegeken
(sien
Klousule 1.6 hierbo) naamlik Gedeelte 60 (voorheen Erf Nr 59) aan die
Koper sal oordra teen betaling van die bedrag van R25
000.00 asof die
eiendom formeel aan die koper verkoop is op 24 Junie 1991 vir gemelde
bedrag.
[45] The waiver of rights by the first respondent was,
therefore, negotiated by Stroebel in his role as facilitator or
intermediary
(“tussenganger”). The waiver was necessary in view
of the refusal of Griessel and other shareholders to sign the
Agreement
if the problems created by the first respondent’s claim
of rights were not resolved. Stroebel communicated the waiver to Dr
Robinson
of the Parks Board and to the shareholders, including
Griessel. The Agreement was signed and ownership of Die Stroois was
allocated
to Griessel.
[46] The waiver is recorded in paragraph 1.8 of the
Preamble to the Deed of Sale as an agreement that
had
been
entered into between the Parks Board and
the first respondent (“tussen die koper en die Nasionale Parkeraad
dit ooreengekom
was
”
(my emphasis)) in exchange of which he would receive a certain erf.
In paragraph 1.10 of the Preamble it is recorded that the
Deed of
Sale gives effect to the agreements entered into in relation to the
waiver of rights and the receipt of an erf in exchange.
As part of
the developments that preceded and gave rise to the waiver, paragraph
1.8 of the Preamble refers to certain correspondence
and certain
draft agreements (“korrespondensie sedert 1991 en
konsepooreenkomste hierby aangeheg onderskeidelik gemerk ‘C1-C5’”).

It should perhaps be stressed that paragraph 1.8 of the Preamble does
not constitute the waiver – it records the waiver of rights
by the
first respondent prior to the signing of the Agreement on 24
th
December 1991.
[47] The respondents contend that the waiver was part of
a composite agreement which embraced the first respondent’s waiver
of
his rights, the making available to the first respondent of an erf
by the Parks Trust, and the purchase of Die Stroois by the second

respondent.
[48] Stroebel more than once emphasised in evidence that
during his negotiations with the first respondent for a waiver of the
latter’s
rights in exchange for an erf to be made available by the
Parks Trust, the first respondent at no stage indicated to him that
his
sister also had claims. To cite but one of his repeated
assertions, he said in evidence in chief:
Het hy vir u aangedui op daardie stadium dat sy suster ook aansprake
het? ---Nooit. Ek het sy suster vanoggend vir die heel eerste
maal
ontmoet en sy was nooit ter sprake asof sy aansprake het nie.
It was put to Stroebel in cross-examination that the
second respondent, through her attorneys, was dealing directly with
the Parks
Board in regard to her claims. Stroebel could not, and did
not, deny this.
[49] The negotiations on behalf of the second respondent
for the purchase of Die Stroois at a price of R180 000.00 are
apparent
from the correspondence contained in the Bundle. The
proposed purchase also features in the letter dated 24
th
June 1991 addressed to the Parks Board in which it is stated that
both the respondents waive whatever rights they may have to
Stofbergsfontein, subject to (i) the erf being transferred to the
first respondent at a purchase price of R25 000.00, and (ii) the

simultaneous transfer by Griessel of Die Stroois to the second
respondent at a price of R180 000.00. In a further letter (dated
8
th
February 1996) addressed to the Parks Board by the respondents’
attorney, it is said that the second respondent –
Onder aparte dekking met u sal korrespondeer insover dit nodig mag
wees ten einde haar transaksie te finaliseer met Mev Lorainne

Griessel vir die transportering van “Die Stroois” vir R180
000.00.
The two letters are annexed to prargraph 1.8 of the
Preamble to the Deed of Sale in which the background (history) of the
first
respondent’s waiver of his rights in exchange for an erf as
negotiated with Stroebel is set out.
[50] It is common cause that the sale of Die Stroois to
the second respondent for R180 000.00 was never reduced to writing
and signed
by the parties. The second respondent, moreover, did not
assert any claim to Die Stroois when it was allocated to Griessel in
the
Agreement and in the Supplementary Agreement, nor when the
property was transferred to Griessel in 2002.
[51] In my view, there was no composite agreement. The
evidence of Stroebel establishes that the first respondent in 1991
waived
his rights to Die Stroois in exchange for an erf to be
transferred to him for a relatively nominal price of R25 000.00. The
proposed
sale of Die Stroois was the subject of a different agreement
between different parties; it did not come off the ground, and in the

end no agreement was concluded.
Right of occupation.
[52] The first respondent’s claim to a right to occupy
Die Stroois arises from the terms of the Supplementary Agreement
entered
into between the Parks Board, the Parks Trust and the
shareholders on 31
st
January 1992; that is, a little more than a month after the Agreement
was signed. The Supplementary Agreement relates,
inter
alia
, to the allocation of the four the
“farmhouses” which are identified as follows in clause 3.1:
No 2 Occupied by Mr Caswell
No 13 Occupied by Mr Johnson
No 14 Occupied by Mr De Nicker
No 8 Occupied by Mr Pauw
In clause 3.2 it is noted –
… that the farm houses referred to above have been allocated to
Lorraine Myrtle Griessel in terms of the Agreement for her sole

benefit and title subject to the following conditions.
Payment
(a) Payment of R7812.50 (seven thousand eight hundred and twelve Rand
and fifty cents) each by Lorraine Myrtle Griessel to Mrs
JW
Florentino
and
to Mr MJ Slabbert in full and final settlement
of their respective share entitlement in these farm houses which
payment is to be
made on fulfilment of the suspensive conditions of
the Agreement.
Occupation and usage rights
Lorraine Myrtle Griessel and her successor in title accepts and
agrees that:
the existing occupiers have usage and occupation rights of the
respective farm houses
existing occupiers may have incurred costs in the purchase and
acquisition, repairs and improvements to their respective farm

houses that they occupy.
The A and B-Group members are indemnified against
any
claims
by the occupiers of the farm houses in respect of
their occupation rights
compensation for costs in respect the acquisition, purchase, repairs
or improvements to the farm houses that they occupy
restoration of rights
any other claims.
[53] In the Agreement the farmhouses were allocated to
Griessel. From the terms of the Supplementary Agreement it is
apparent that
the other shareholders were concerned about their
incurring liability for claims by occupiers of the farmhouses. The
purpose of
clause 3 of the Supplementary Agreement is clearly to
re-iterate the allocation of the farmhouses to Griessel, who will
recognise
the usage and occupation rights of occupiers of the
farmhouses and who will indemnify the other shareholders (the A and
B-Group
members) against claims by the occupiers. I do not agree with
the submission made in argument that the shareholders agreed to the

transfer of ownership of the farmhouses to Griessel on the basis that
she would respect the occupiers’ right of occupation and
not seek
their eviction – the essential purpose of clause 3 of the
Supplementary Agreement was to ensure that the other shareholders
did
not incur liability in respect of claims for compensation by the
occupiers of the farmhouses allocated to Griessel. That the
parties
were very much aware of the possibility of claims for compensation is
apparent from the memorandum, dated 18
th
January 1991, prepared by Griessel’s husband and addressed to the
respondents’ attorney in which he states that he had discussed
the
question of “vergoeding vir verbeterings” with the first
respondent. The nature and extent of the usage and occupation
rights
of the different occupiers of the farmhouses are not spelled out in
the Supplementary Agreement: the legal base of the usage
and
occupation rights may have been different in the individual cases.
[54] The Agreement and Supplementary Agreement came to
the notice of the first respondent in February 1992. The respondents’
attitude
to the agreement is set out as follows in the first
respondent’s answering affidavit:
We have not accepted the benefits which were intended by those
provisions to be conferred upon us. The reason we have not done
so,
is because we assert title as owners to Die Stroois, and it would in
the circumstances not make sense for us to assert a lesser,

contractual right. In the event, however, that this Honourable Court
should find that we are not entitled to assert rights as owners
of
Die Stroois, we shall certainly accept the benefits of the Parks
Board agreement pertaining to ourselves as protected occupiers
with
usage and occupation rights. Such rights, I respectfully say, would
disentitle Applicant from the relief she seeks in these
proceedings.
[55] The first respondent, therefore, relies upon a
conditional acceptance (by way of his answering affidavit and at the
end of
his evidence in chief) of the right to occupy the property,
conditional upon a finding that he does not enjoy prescriptive title.

In his evidence, the first respondent re-iterated that they would
reluctantly accept occupation as an alternative if their claim
to
prescriptive title should be unsuccessful.
[56] In my view, the first respondent has made it clear
that when the Supplementary Agreement came to their attention during
February
1992, they unequivocally elected not to accept the benefit
of the right of occupation. Election, as Trollip JA pointed out in
Feinstein v Niggli and Another
1981
(2) SA 684
(A) at 698G, generally involves a waiver:
… one right is waived by choosing to exercise another right which
is inconsistent with the former.
[57] It was further submitted that Griessel had
contractually restricted her ownership by way of the Supplementary
Agreement and
what she received was ownership less the (immediate)
right to use and occupy the property. Mr Fagan suggested that
conceptually
the position is no different from the sale of immovable
property by a landlord where the right of occupation of a lessee is
protected
by the
huur gaat voor koop
principle. The answer is twofold. Firstly, by their election not
accept the benefit of the right of occupation, any contractual

restriction on Griessel’s ownership was still-born; what remained
was her obligation to indemnify the other shareholders against
the
claims of occupiers. Secondly,
huur gaat voor
koop
vests a real right in the lessee.
Zimmermann
The Law of Obligations
382 points out that –
… from a dogmatic point of view this presents something of an
anomaly: for the tenant, on the basis of a conceptually obligatory

contract of lease, acquires quasi-real position, a ‘modified or
exceptional’ real right.
I am not disposed to extend an anomalous rule which
finds its origin in Germanic and old Dutch customary and statutory
rules.
The second respondent’s position
[58] It was pointed out above in paragraph [41] that the
question whether or not the second respondent possessed openly as if
she
were the owner arises only if it is accepted that the period of
acquisitive prescription commenced with Mr Callie Pauw at the end
of
1973 / beginning of 1974.
[59] In regard to the requirement in
section 1
of the
Prescription Act 68 of 1969
that a claimant must have possessed
openly, DL Carey Miller (with Anne Pope)
Land
Title in South Africa
(2000) at 164 say:
There are two reasons why possession must be open rather than secret
or clandestine. First, in that prescription is justified by
the
impression created by outward appearances, in the world at large, it
stands to reason that the exercise of rights must be patent:
without
this the element of publicity could be satisfied. Secondly, from the
owner’s point of view, the security of ownership
entitles an owner
to leave his or her property and it would be unfair to expect him or
her to take steps to recover possession
maintained secretly by
another.
[60] It was submitted on behalf of the applicant that
during the period 1984 to 1990 there is documentary proof that the
first respondent
asserted his rights to,
inter
alia
, Die Stroois, but that there is none of
the second respondent doing likewise. On the other hand, it is beyond
dispute that after
Mr Callie Pauw’s death, the second respondent,
along with the first respondent, took possession and occupation of
Die Stroois
which they used as a holiday cottage. The second
respondent, her husband and her children regularly spent week-ends
and holidays
in the cottage. The wedding reception of one of the
second respondent’s daughters was held on the property. She
contributed her
share to the maintenance of the cottage.
[61] The first respondent was undeniably looked upon as
the “principal” occupant of Die Stroois. This is perhaps
inevitable
if one keeps in mind that Die Stroois had since 1974, when
Mr Callie Pauw took occupation, been occupied by a member of the Pauw

family. Thus, for example, in the Supplementary Agreement, the
occupier of Die Stroois is given as “Mr Pauw”; there is no
mention of Mrs Kruger. In the correspondence there is reference to
the claims of “Pauw” and the “Pauw Familie Aansprake”,
the
latter term clearly used in a context which includes the second
respondent. In an undated letter apparently written shortly
after
11
th
September
1990 addressed to Dr Robinson of the Parks Board, Griessel refers to
a meeting which her husband had with Dr Robinson
at which her husband
had expressed some optimism that a settlement could be reached with
Charl Pauw
in
connection with Die Stroois. She further refers to “a proposition”
which her husband had shortly after 11
th
September 1990 put to the respondents’ attorney. This is clearly a
reference the proposed sale of Die Stroois to the second respondent

once Griessel had obtained title to the property. In the rest of the
letter, Griessel deals with the claims of
Pauw
to Die Stroois, and makes it clear that she finds
his
claims wholly unacceptable.
[62] The applicant contends that the second respondent
merely occupied through the first respondent as a member of the
family. In
my view, “the impression created by outward appearances”
is such that the second respondent’s possession of Die Stroois
meets
the test that she possessed openly.
[63] The question arises, however, whether the second
respondent possessed the property as if she were the owner thereof ?
Can a
claimant for prescriptive title possess “as owner” if he or
she indicates a willingness to negotiate with the owner for the

purchase of the property concerned? In
Campbell
v Pietermaritzburg City Council
1966 (2) SA
674
(N) Miller J (as he then was) states (at 680B):
As I understand the authorities, property may be possessed ‘adversely
to the rights of the true owner’ if it is held and possessed
by one
who, knowing that he is not the legal owner, nevertheless holds it as
if he were; ie without manifesting recognition of
the true owner’s
rights as such.
(The learned Judge refers to following authorities:
Malan v Nabygelegen Estates
1946 AD 562
at 574;
Du Toit and Others v
Furstenburg and Others
1957 (1) SA 501
(O) at
505;
Payn v Estate Rennie and Another
1960 (4) SA 261
(N) at 262) (See further DL Carey Miller (with Anne
Pope)
Land Title in South Africa
(2000) at 174—176).
[64] The case of
Du Toit and
Others v Furstenburg and Others, supra,
is
instructive within the present context. In that case, the claimant
let the property, made permanent improvements thereon and
generally
acted as though he was the owner. De Villiers J (as he then was)
rejected the argument that an attempt to obtain transfer
by the
claimant was an act inconsistent with the intention to possess “as
owner”. At 505G—H the learned Judge states:
Now would the possession cease to be adverse merely because he asks
for transfer from a person who is prepared to give transfer
and who
makes no claim to the property itself ? I do not think so. It seems
to me that possession which is adverse only ceases
to be adverse
where the true owner makes claim to the property, ie asserts his
rights as owner, and the person exercising possession
acknowledges
that other as the true owner.
Griessel asserted her ownership and the second
respondent acknowledged Griessel as the true owner by negotiating
with her the purchase
and transfer of the property. This is further
acknowledged in the letter dated 8
th
February 1996 addressed to the Parks Board by the respondents’
attorney, in which reference is made to the finalisation of the

transaction with Griessel for the transfer of Die Stroois to the
second respondent for a purchase price of R180 000.00 (the relevant

paragraph in the letter is cited in paragraph [49] above). The second
respondent’s possession ceased to be adverse when she acknowledged

Griessel’s rights as owner.
The Subdivision of Agricultural Land Act 70 of
1970
[65] Section 3 of the Subdivision of Agricultural Land
Act 70 of 1970 (“the Act”) places a prohibition upon the
subdivision
of agricultural land without the consent of the Minister
concerned. It is common cause that the property in question was, at
least
during the 1970’s and 1980’s agricultural land within the
meaning of the Act.
[66] The applicant contends that whilst the farm
Stofbergsfontein and therefore the property was agricultural land, no
occupier
of any portion of the farm could acquire that portion by way
of prescription. Prescription could therefore not run in favour of

the occupier and against the owners of the property for as long as it
was agricultural land.
[67] In view of my finding that the respondents have not
established their claim to prescriptive title, the issue raised by
the
applicant need not be decided. Suffice to say that, in my view,
the submission on behalf of the respondents is correct; namely,
that
the Act does not prevent a person from acquiring agricultural land by
way of acquisitive prescription, but in order to subdivide

agricultural land so as to give effect to prescriptive title in
respect of a portion of such land, ministerial consent in terms
of
section 3 of the Act would be required.
Co-possessors
[68] As is pointed out above in paragraph [41], if it
were to be accepted that the period of acquisitive prescription
commences
with Mr Callie Pauw at the end of 1973 / beginning of 1974,
the first respondent falls short of the requisite 30 year period but

the second respondent would have established her 30 years. It is the
applicant’s contention that failure by one possessor successfully

to assert ownership of property by acquisitive prescription has the
result that the assertion of co-ownership by another possessor
also
fails.
[69] The respondents say that the fact that the
applicants have asserted joint ownership of Die Stroois is of no
concern to the
applicant whose only concern is whether any possessor
can successfully assert acquisitive prescription against her. If any
possessor
is able to do so, that terminates the applicant’s
ownership of the property.
[70] The respondents rely on
Barker
NO v Chadwick and Others
1974 (1) SA 546
(D),
a case in which four brothers possessed immovable property in
undivided shares. Three of the brothers died before the lapse
of the
period required to establish prescriptive title. The estate of the
fourth brother claimed ownership by prescription of the
immovable
property. It was held by Milne J (as he then was) (at 465F):
The position is, therefore, that as against the owner of the property
Dhumraj himself had the requisite possession of the property
from
1906 to 1945. The fact that he shared that possession with two of his
brothers until 1918 and with the one remaining brother
until 1929,
appears to me to be irrelevant in the particular circumstances of
this case.
[71] The applicant submits that Milne J focussed on the
physical (
corpus
)
element of possession without specific regard to the mental (
animus
)
element of possession. It is accordingly contended that the finding
that the falling away of a co-possessor, who had the intention
to
possess the property as co-owner, cannot have any effect on the
position of the remaining possessor, is wrong and should not
be
followed. The applicant says that in the present case the respondents
had throughout occupied the property as co-owners and
that neither of
them ever occupied the property as sole “owner”. It is further
contended that even after the first respondent
had fallen away
(either by reason of his waiver or interruption of his prescriptive
period) the second respondent continued to
occupy the property, not
as owner of the property as a whole, but as co-owner of half of the
property in undivided shares. In the
circumstances she has, to this
day, recognised the first respondent’s claim to ownership and
though she may have been in possession
of the property for the
requisite period, her
animus
has always been one of co-owner only.
[72] In my view, if the second respondent’s shared
occupation is sufficient in degree to support the conclusion that she
acted
as if she were the owner, the fact that she intended to share
ownership with a co-occupier is of no concern to the applicant. The

failure of the first respondent successfully to assert ownership of
the property by acquisitive prescription does not, therefore,
have
the result that the assertion of ownership by the second respondent
must fail on this score.
Conclusion
[73] In view of the foregoing, I have come to the
conclusion that the first and second respondents have not established
their claim
for ownership of Die Stroois by acquisitive prescription.
The first respondent has also not established his claim to a right of

occupation of Die Stroois.
[74] The following orders are made:
The respondents are ordered to vacate the property
known as “Die Stroois” being Portion 6 (a Portion of Portion 2)
of the
farm Stofbergsfontein No 365, in the West Coast District
Municipality, Division Malmesbury, Province of Western Cape within

three months of the date of this order, failing which the Sheriff
for the district of Morreesburg/Hopefield is authorised to
remove
them and all persons under their control, together with their
possessions, from the said property on 30
th
October 2006.
2. The first and second respondents must pay the
applicant’s costs of suit jointly and severally, such costs to
include the costs
reserved by paragraph 7 of the order made on 29
th
August 2005 and paragraph 5 of the order made on 24
th
November 2005, and the costs occasioned by the employment of two
counsel.
HJ ERASMUS, R